Fighting the ghosts of Soviet justice
Support the CJEU to protect the rule of law in Poland
The Court of Justice of the EU (CJEU) has forced Poland to undo some steps in the demolition of judicial independence. But Poland's judiciary is still under siege. No member state of the EU has ever gone as far in subjugating its courts to executive control. EU member states and all parliamentary groups should support the European Commission and the Court in their ongoing battle to protect the rule of law in Poland.
Since coming into power in 2015, the ruling Law and Justice Party (PiS) has brought the whole system of appointment, promotion and disciplining of judges and prosecutors under its control. It captured the Constitutional Tribunal, ignoring its rulings until it had filled it with new friendly judges. It dismissed the members chosen by judges on the National Council of the Judiciary, the body responsible for nominating judges and safeguarding the independence of the judiciary, and replaced them by members chosen by the parliamentary majority. The Council of Europe’s Venice Commission warned already in late 2017 that the changes to the judicial system bore “a striking resemblance with the institutions which existed in the Soviet Union and its satellites.”
Then, in December 2017, PiS pushed through parliament a new law on the Supreme Court, stipulating the forced retirement of dozens of judges, so that 70 of 120 Supreme Court judges would be replaced.
On 29 May 2018 the Batory Foundation and ESI published a joint report on the rule of law in Poland. Building on a landmark ruling concerning a salary dispute of judges in Portugal from February 2018, we made a concrete recommendation: that the European Commission take Poland to the Court of Justice of the European Union (CJEU) to challenge Poland's Law on the Supreme Court.
The report received widespread and prominent support. On 2 July 2018 the European Commission started the procedure which led Poland to being taken to the CJEU in September. The court issued an interim measure to stop implementation of the law. The Polish government withdrew its changes. It was a victory for the rule of law.
But this case addressed only one aspect of the systematic demolition of Poland’s independent judiciary by the governing party. In 2018, new legislation allowed Poland’s Minister of Justice and Prosecutor General to appoint every single person involved in the investigation, prosecution and adjudication of disciplinary charges against ordinary judges in Poland. The minister, who serves since 2016 also as prosecutor general, appointed new national disciplinary officials who began to initiate disciplinary investigations against judges openly critical of his efforts to subdue Poland’s independent judiciary.
On 22 March 2019 the Batory Foundation and ESI made another concrete recommendation:
"The European Commission needs to take Poland to the Court of Justice of the European Union (CJEU) as soon as possible for infringement of the EU's fundamental values and principles, focusing on disciplinary procedures and the executive's control over judges."
Two weeks later, on 3 April 2019, the European Commission launched another infringement procedure against Poland, stating that“the new disciplinary regime undermines the judicial independence of Polish judges by not offering necessary guarantees to protect them from political control, as required by the Court of Justice of the European Union."
On 19 November 2019 the CJEU issued a landmark ruling, setting out criteria to judge the independence of any court as determined by the EU treaty and inviting the Labour Chamber of the Polish Supreme Court to apply these criteria. On 5 December 2019, the Labour Chamber ruled that the new Disciplinary Chamber failed to satisfy the criteria of judicial independence as set out by the CJEU. It also invited all Polish judges to apply the CJEU criteria directly.
In response, on 12 December the government presented a draft law introducing a range of new disciplinary offences specifically targeting judges applying the recent CJEU ruling. As proposed by ESI in a third report, on 14 January 2020 the European Commission asked the CJEU to issue an interim measure to stop all activity by the new Disciplinary Chamber. Less than 10 days later and in clear defiance of this step, on 23 January PiS’ parliamentary majority adopted the new law allowing the targeting of judges applying the CJEU ruling.
By the time the CJEU rules on this matter there may not be much of an independent judiciary left to save. The CJEU has not yet ruled on the Commission’s request for an interim order to suspend the work of the disciplinary chamber. Two steps need to be taken urgently:
First, the Commission should request from the CJEU to put the infringement case concerning the disciplinary system into accelerated procedure. The on-going intimidation of judges as well as the Polish government’s dismissal of the CJEU verdict from November 19 provide strong arguments for this.
Second, member states must warn the Polish government against the grave consequences of undermining the independence of courts. They must focus on the mounting threat of the collapse of rule of law in the EU and the consequences this would have for people (and businesses) in Poland and elsewhere in the EU. They should request information from the Polish government about how it intends to prevent this. The aim must be to restore the conformity of the Polish legal system with European standards. A clear position by EU member states would also strengthen the CJEU in its battle against the destruction of the rule of law in Poland.
All European political groups that care about the integrity of the rule of law in the European Union should support this as a matter of huge significance that goes beyond party politics. What is at stake in Poland today is the future of the EU as a project based on the rule of law, the separation of powers and human rights.